Justice – and ourselves – on trial over gang rape

When an Indigenous girl is gang-raped, sometimes the justice system goes on trial. But what of our society and ourselves, by inattention permitting a festering inequity that breeds an inevitability of trouble. Peter Applegarth SC of Queensland Council for Civil Liberties examines the background to a tragic case.

Civil rights and community failure

By Peter Applegarth SC*

The tragic case of a girl gang-raped at Aurukun in Queensland reminds us that a fundamental civil liberty is the right of every individual to be free from attack. The responsibility of the community, through the state, to guarantee that right is heightened when the individual is a defenceless child in an Indigenous community.

The understandable response of the public is to blame the judge and the public prosecutor for lenient sentences. But to focus on the apparent failure of the criminal justice system to deliver justice in this individual case, or in other Cape York cases in Queensland where sentences have been subject to review, avoids looking at a broader systemic failure. It is the failure of our political system to extend basic rights to the most disadvantaged individuals in our community.

Heaping the blame on the criminal justice system, and individual judges and prosecutors, lets the political system and the broader community off the hook.

Governments have been on notice of the conditions of Indigenous communities and the cycle of abuse that is exemplified in the Aurkun case. Governments have done too little over recent decades to improve housing, employment, health and education and to extend the rule of law to indigenous communities. Why?

One easy answer is that the attention of progressive forces has been on land rights, native title rights and self-determination. But a more honest answer is that the bulk of Australians, who enjoy material comfort and the protection of the rule of law, have not insisted that governments do something to extend freedom under the rule of law to Indigenous communities.

The real community failure is the failure of our community to make the welfare and civil rights of individuals in Indigenous communities a political priority.

The criminal justice system takes account of the disadvantaged circumstances of offenders in Indigenous communities, just as it takes account of personal circumstances in mitigation when sentencing white offenders in the city. It would be odd if a civilised criminal justice system did not take account of the individual circumstances of the offender in aggravation or mitigation of sentence.

An unfortunate consequence is that the circumstances of many offenders in Indigenous communities are so dire that sentences for serious crimes appear to be out of kilter with community expectations. Sentences like the original ones in the Aurukun case bring the criminal justice system into public disrepute.

The apparent failings of the criminal justice system are part of a broader failure by our community to insist that Indigenous communities enjoy freedom under the law and material services that encourage law-abiding conduct.

The civil rights of children and others to be safe from attack are protected, in part, by police, and by a criminal justice system that punishes the guilty and sends a message to others about what is socially acceptable. But a functioning criminal justice system that extends the rule of law to Indigenous communities is only part of the solution. The criminal justice system did not create the endemic problems that exist in Indigenous communities, and it alone cannot fix it.

Standards of civilised behaviour, and the right not to be assaulted, can be enforced by the law. But law-abiding conduct is fostered in a community that is educated, healthy, adequately housed and gainfully employed.

We can all express outrage at the latest episode of government neglect in the Aurukun case. But how high a priority was safety and welfare in Aboriginal communities when each of us last cast a vote? Did our own material comfort have a higher priority?

When the consequences of our neglect as a community are highlighted in a case like the Aurukun gang-rape, it’s easy to blame judges, prosecutors, left-wing politicians, social workers and the child’s family. But that dodges a broader community responsibility. The human rights of a young girl in an Indigenous community are matched by a community responsibility to protect them. Until we as a community prioritise the safety and welfare of individuals in Indigenous communities, tragic cases will continue. Sacking judges is not the solution. Meeting our collective responsibility to guarantee the human rights of the disadvantaged is.

Statement issued in December 2007 by the Queensland Council for Civil Liberties, written by one of its Vice-Presidents, Peter Applegarth SC.

CLA thanks QCCL for permission to run the article.

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